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JANUARY 11, 2013

Oklahoma Update:

ABLE Disciplinary Hearings Overview

John A. Maisch, General Counsel

Like all regulatory agencies, the ABLE Commission has a vested interest in ensuring that its disciplinary proceedings are conducted in a fair and judicious manner. As such, the Oklahoma Alcoholic Beverage Control Act and the Oklahoma Administrative Procedures Act ensure that licensees accused of committing administrative infractions are provided due process.

Due Process in Administrative Proceedings

The ABLE Commission is a constitutionally created state agency entrusted with the power to regulate the alcoholic beverage industry in the State of Oklahoma. Article 28, §1 et seq. Its enabling statute is set forth in the Alcoholic Beverage Control (“ABC”) Act, 37O.S. §502 et seq., and the Oklahoma Administrative Code, OAC 45:1-1-1 et seq. A liquor license is a purely personal privilege that is not alienable or transferable by the licensee. 37 O.S. §532. Those persons granted the privilege of maintaining liquor license are subject to disciplinary action when their misconduct. 37 O.S. §514(5).

Disciplinary proceedings are typically initiated when an ABLE agent issues an administrative citation against the licensee. In these situations, the licensee will receive an administrative ticket setting forth several important pieces of information, includingcitation number, the administrative charges being alleged against the licensee, and the date and time of the administrative hearing. A carbon copy of the administrative citation is sent to ABLE Commission office for processing. For those attorneys wishing to discuss a recently filed case, note that it can take 7-10 working days for the administrative citation to make it to the ABLE Commission’s Legal Division for review.

The Oklahoma Administrative Procedures Act (APA) set forth the procedures by which disciplinary hearings must be conducted by agencies, as defined in 75 O.S. §250.3. The ABLE Commission falls within the statutory definition of an agency. The APA addresses the procedural due process rights afforded to those who may be adversely affected by an agency’s action at 75 O.S. §309. The ABC Act provides comparable due process rights for those licensees accused of violating an administrative violation. 37 O.S. §530. Similar to the APA, the ABC Act requires notice to be provided to the licensee, as well as an opportunity for the licensee to contest the administrative charges levied against him. The APA requires that the administrative citation provide only “short and plain statement of the matters asserted.” 75 O.S. §309(B)(4). While the administrative citation issued by the ABLE agent contains sufficient information for the licensee’s attorney to

understand the allegations being made against his client, the attorney may wish to further flesh out the allegations by requesting a more definite statement from the agency as permitted by the APA. Id.

Discovery in Administrative Proceedings

The ABLE Commission has the power to issue subpoenas duces tecum, pursuant to its administrative subpoena powers set forth at 37 O.S. §514(11). In addition, all ABLE licensees are required to maintain all books, records, inventories, invoices and other accounting documents associated with the license for three (3) years and are required to make those records available for inspection by the ABLE Commission at all times. 37 O.S. §552. Unlike the ABC Act, however, the APA also provides both the agency and the licensee the opportunity to conduct depositions. 75 O.S. §315(A)(2).

It is important to note that neither the ABC Act nor the APA expressly allows the ABLE Commission or its licensees to avail themselves of other discovery tools that might otherwise be available in civil proceedings, such as interrogatories, requests for admission, or requests for physical or mental examinations. Legitimate questions arise as to how to reconcile the Oklahoma Open Records Act and records generated by an agency while prosecuting an administrative hearing.

The Open Records Act was intended to “facilitate the public’s right of access to and review of government records so that they may efficiently and intelligently exercise their inherent political power.” 51 O.S. §24A.2. However, the Open Record Act makes exceptions for a variety of records that would be generated by an agency in the prosecution of a licensee, including the following:

1) Records protected by attorney-client privilege, work product, or the identity of an informer. 51 O.S. §24A.5(1)(a).

2) Personal notes prepared as an aid to memory. 51 O.S. §24A.9.

3) Litigation files and investigative reports. 51 O.S. §24A.12.

Despite these exceptions, when prosecuting disciplinary hearings, I have consistently chosen to provide the licensee a copy of the investigation report submitted by the ABLE agent upon request of the licensee or the licensee’s attorney.This action is consistent with the §24A.8(3) of Title 51, which provides that:

“Law enforcement agencies shall make available for public inspection, if kept, the following records… [a] chronological list of all incidents, including initial offense report information showing the offense, date, time, general location, officer, and a brief summary of what occurred.” 51 O.S.Supp.2009, §24A.8(3).

Disciplinary Hearing

Both the APA and ABC Act set forth procedures by which disciplinary hearings are conducted before the ABLE Commission. 75 O.S. §309 and 37 O.S. §530. The ABLE Commission’s Director is given the statutory authority to appoint an administrative law judge to hear arguments in the case. The administrative law judge reports his proposed findings of fact and conclusions of law to the Director. 37 O.S.§530.1. The licensee has fifteen (15) days after receiving notice of the Director’s determination to appeal the decision to the full ABLE Commission. Id.

When a case it appealed to the full ABLE Commission, both parties are provided an opportunity to present their legal arguments to the full Commission in open session. Like most agencies, these appeals are based on the record, not de novo. The Open Meeting Act allows the Commissioners to enter Executive Session to deliberate. 25 O.S. §307(B)(8). However, all votes concerning the matter must be taken in open session.It is critically important that no votes be taken on the appeal while in Executive Session.

Conclusion

The ABLE Commission is committed to protecting a licensee’s due process rights as provided under the ABC Act and APA, as well as furthering the legitimate goals advanced by the Open Meeting Act and Open Records Act. It is important that all prosecuting agencies continue to reconcile these various state laws while fulfilling their agencies’ objectives.

This article is an excerpt from a webcast presented by John Maisch on behalf of the Oklahoma Bar Association’s continuing legal education program on May 3, 2011. The webcast in its entirety is available through the OBA’s website at www.okbar.org or by calling (405) 416-7006. The OBA has approved the webcast for continuing education and charges $50.00 to view the 50-minute webcast.

Oklahoma Update:Oklahoma City NCSLA Conference – 2012

A. Keith Burt, Director Oklahoma ABLE Commission

We are quickly returning to our daily routine here at the Oklahoma ABLE Commission. The last month has been very busy for staff as we hosted the Regional conference for the National Conference of State Liquor Administrators here in Oklahoma City.

I had promised to publish the evaluations of the fifteen panels that were presented during the two and a half day business agenda when they were compiled, so here they are.

Later this month on our ABLE Commission website, we will post the results of the individual panelists as well.

I was very proud so many Oklahomans graded very well. With 4 as a perfect score, 3.96 earned top marks for panels with “To Catch a Moonshiner”. The only perfect score
was received by Evan Lawson, an experienced trial lawyer practicing in Boston, Massachusetts, for his participation on the panel, “Unlawful Trade Practices”. This much anticipated rematch from last summer’s battle in Washington, D. C. featured two of the very best as Lou Bright, Attorney with Jack Martin & Associates, Austin, Texas, pitted wits with Evan Lawson to the entertainment and education of a thrilled
audience.

With the holiday season greatly approaching, I want to wish everyone a happy, safe, and prosperous
holiday season. No one wants to get a ticket, go to jail, or even worse, be a part of, or cause an accident. So remember, over the holidays let's all get home safely. If you’re going to drink, BE RESPONSIBLE.

Oklahoma Update:
Oklahoma ABLE Commission plays host to National
Conference of State Liquor Administrators (NCSLA)

A. Keith Burt, Director Oklahoma ABLE Commission

September 30 through October 3, 2012, the Oklahoma ABLE Commission hosted the NCSLA’s regional conference in
Oklahoma City, Oklahoma.

Regulators and industry members were treated to a powerful business agenda as well as a social agenda that showed off Oklahoma’s warm hospitality. The conference was a huge success by all accounts, almost doubling the last couple of years’ regional attendance. Some attendees remarked that our regional conference was the same caliber and quality of an annual conference, while others remarked the Oklahoma City Conference should be used as a model for regional conferences going forward.

The business agenda showed a balance with panelist providing insight into tribal sovereignty, states rights and disclosure requirements. We had discussions on direct shipment, dram shop updates along with risks involved in serving alcohol. Oklahoma added a local flavor as founder of Eskimo Joe’s, Stan Clark, shared his amazing success story. Special Agent in Charge Joe Daniels of the Oklahoma ABLE Commission showed the not so glamorous side of the moonshine
business.

Technology advances were presented and Continuing Legal Education (CLE) was offered to attendees. We examined unlawful trade practices and discussed ethics with Oklahoma’s own General Counsel John Maisch, who was the driving force behind so many thought provoking panels.

The NCSLA showed it is not afraid to address controversial issues as “Battle for Whiteclay” was a moving experience for everyone in attendance. The social agenda was equally impressive as Oak Tree National, which has been the site to major PGA events, played host to the NCSLA golfers. An off site dinner and poker tournament on Monday night was followed by a breathtaking view of Oklahoma City from the 35th floor of the Petroleum Club acting as the backdrop for Tuesday’s banquet. Some how we managed to provide dining at the Silks Restaurant for Remington Park’s 24th running of the Oklahoma Derby, a Murrah Building tour and a National Cowboy and Western Heritage Museum visit during the few free hours attendees had. Long time retailer Byron Gambulos was honored for a lifetime of responsible retailing and retired ABLE Commission General Counsel Kurt Morgan was recognized for his work with the liquor industry while at the ABLE Commission.

We closed the conference with our honored guests from Hawaii as NCSLA participants were treated to a sneak peek of next year’s annual convention in Honolulu, Hawaii, June 24 through 28, 2013.

The Commissioners of the Oklahoma ABLE Commission and I were grateful for the opportunity to show Oklahoma off to visitors from around the country. With limited staff and budget, I believe the Oklahoma ABLE Commission displayed the warmth and hospitality of Oklahoma, while presenting a first class business agenda.

I may have to take a brief respite before inviting everyone back for another conference, but rest assured, staff answered the challenge and made us all proud.

OCTOBER 25, 2012

OKLAHOMA UPDATE:

Tequila Recall Spotlights Communication

John A. Maisch, General Counsel

Last month, the ABLE Commission received notice that half gallon bottles of 1800 Tequila Silver, Resposado, and Coconut were being voluntarily recalled by the product manufacturer. Product recalls are a serious subject to both state regulators and industry stakeholders, especially when those recalls involve possible threats to consumer safety.

In its August press release, the tequila manufacturer announced that it had decided to voluntarily recall the bottles due to potential damage to the glass stopper incurred during transportation and handling of the product. After being notified of the recall by the product’s nonresident seller, Republic Distributing, the ABLE Commission immediately required all ABLE licensees to discontinue selling or serving the recalled products pursuant to its emergency powers set forth in Oklahoma Statutes.

The ABLE Commission oversaw Republic’s efforts to collect cases of the recalled product from Class-A wholesalers in the state, contacting every wholesaler to verify that each wholesaler had made the collection effort a top priority. The ABLE Commission was also successful in transmitting the recall information to the state’s two largest daily newspapers, the Daily Oklahoman and Tulsa World, which both subsequently ran stories in an effort to notify consumers about the recall.

Because all spirits are required to be purchased through a wholesaler, the ABLE Commission was able to obtain an accurate list of all Oklahoma mixed beverage establishments and package stores that had purchased the product from a wholesaler within the last thirty days. Using that list, the ABLE Commission was better able to assist the nonresident seller and wholesalers in the recall effort. ABLE Commission Director Keith Burt personally called restaurants and package stores into the evening hours to notify them of the product recall.

To date, the ABLE Commission has not been notified of any verified findings of glass in any of the recalled bottles in Oklahoma. However, the recall served as a reminder of the importance of maintaining prompt and reliable communications with licensees. When a product has been recalled, the ABLE Commission will promptly issue a press release on its website, www.able.ok.gov. All licensees are encouraged to bookmark the agency’s website and check it frequently to keep apprised of important breaking news such as a product recall.

Any mixed beverage establishment or package store that locates any recalled product that wasn’t retrieved should contact its Class-A wholesaler or Republic immediately so that the recalled product can be picked up. To view a list of affected lot codes, you may view the manufacturer’s website, www.1800tequila.com, call 866-795-8805, or email info@1800tequila.com.

OKLAHOMA UPDATE

STATE REGULATORS & INDUSTRY LEADERS TO MEET IN OKC

A.Keith Burt, Director, Oklahoma ABLE Commission

The National Conference of State Liquor Administrators will hold its Northern- Southern Regional Conference in Oklahoma City on September 30, 2012 to October 3, 2012. ABLE licensees and all other interested persons are invited to join liquor administrators and liquor industry leaders from throughout the United States as they meet to discuss some of today’s most important regulatory issues.

DIRECT SHIPMENT UPDATE

The Wine Institute's Steve Gross will provide an update on recent changes to direct shipment statutes across the country. Headquartered in San Fransciso, California, the Wine Institute represents over 1,000 California wineries and affiliated businesses.

TO SELL OR NOT TO SELL:
MITIGATING DRAM SHOP & OTHER RISKS

Washington DC-based Adam Chafetz, President and CEO of TIPS, moderates a panel focusing on practical steps retailers can take to mitigate or reduce the likelihood of civil, criminal, or administrative penalties associated with selling or serving an intoxicated person.

TRIBAL SOVEREIGNTY & STATE
LIQUOR REGULATION

Mike McBride, Supreme Court Justice of the Pawnee Nation, brings together state liquor regulators and tribal attorneys to discuss a variety of complex issues related to enforcing state liquor laws on tribal land and in tribal casinos.

HOSPITALITY BRANDING SUCCESS
STORIES

Once reported to be the second most collected t-shirt in the world, Eskimo Joe’s Co-Founder, Stan Clark, shares how he grew the Stillwater- based restaurant’s brand into one of the most recognizable in the world and where he sees the hospitality industry headed in the next decade.

TTB LABEL APPROVAL CHANGE
INITIATIVE

Susan Evans, Executive Liaison for Industry Matters with the Alcohol & Tobacco Tax and Trade Bureau, discusses proposed changes to the federal agency's label approval process, including a simplified COLA for some products.

leads a panel of in-house counsel, regulators and alcoholic beverage law specialists as they discuss the challenges and trade practice compliance issues that arise with the continued emergence of social media sites and other digital platforms.

ATTACKING "ACTUAL FURTHERANCE"
ANALYSIS: HOW STATES CAN GET BACK
THEIR PRESUMPTION OF VALIDITY

Georgia attorney Max Hess and his panel examine the strengths and weaknesses of the "actual futherance" analysis.The panel will discuss how state legislatures and liquor agencies can fight to win back the presumption of validity under the 21st Amendment once taken for granted by most courts.

DISCLOSURE REQUIREMENTS IN
REPORTING COMPLEX OWNERSHIP STRUCTURES

New York-based attorney Nicholas Bergman and his panel delve into the intricacies of licensing complex entities, while considering whether there is a more efficient and business- friendly approach to handling the business of regulating today’s highly sophisticated beverage alcohol industry.

TO CATCH A MOONSHINER -
THE DIRTY TRUTHS THAT CABLE
TELEVISON COULDN'T SHOW YOU

ABLE Commission SAC Joe Daniels takes attendees on a photo journey into moonshine operations located in the backwoods of southeastern Oklahoma. Captain Daniels shares the disturbing practices employed by moonshiners, including the story of one Oklahoma moonshiner who would shoot his own dogs and leave their decomposing bodies outside of the shed to mask the scent of his latest batch of shine

BATTLE FOR WHITECLAY - TEMPERANCE
VS.
TAXATION

Winner of Best Political Documentary at the 2009 New York International Film Festival, film
maker Mark Vasina discusses Whiteclay,
Nebraska, an unincorporated town of 12 people whose four convenience stores sell approximately 4.9 million cans of beer every year to the residents of the Pine Ridge Indian Reservation located 200 yards away.

Registration for the NCSLA Conference at the
Cox Convention Center is now open. Interested persons may register on-line at www.ncsla.org or by calling Janice Wariner at the ABLE Commission at 405-522-3003.

NATIONAL CONFERENCE OF STATE LIQUOR ADMINISTRATORS
NORTHERN-SOUTHERN REGIONAL CONFERENCE

Registration begins on Saturday, September 29, 2012
Go to www.NCSLA.org to register and to find full conference details.

Oklahoma Update: A Few Changes for the Summer

A. Keith Burt, Director, Oklahoma ABLE Commission

Another legislative session has come to an end and we have a few new laws to report to Beverage News readers.

Senate Bill provides that universities or colleges located within a business improvement district will be allowed to waive the current restriction prohibiting a bar from locating within 300 feet of that university or college.

Senate Bill prohibits state agencies other than the ABLE Commission from imposing redundant licensing or fee requirements on wholesalers who sell alcoholic beverages to gaming facilities licensed by the Horse Racing Commission.

Senate Bill 1263 strengthens cities’ and municipalities’ power to review and protest low- point beer applications prior to issuance.

While some bills passed, other legislative efforts failed, including bills that would have allowed minors to enter package stores if accompanied by a parent or guardian (House Bill 2930), allowed limited sampling in package stores (House Bill 2954), and would have allowed felons to obtain an employee license three years after the completion of their sentence (House Bill 2867). Another piece of legislation, House Joint Resolution 1015, would have allowed voters to decide whether bottle openers and cork screws could be sold in package stores. The referendum passed the House but failed to get out of the Senate Rules Committee.

On a related note, the initiative petition that calls for a constitutional amendment allowing grocery store wine sales was unsuccessfully challenged at the Oklahoma Supreme Court. The initiative petition, submitted by the Oklahomans for Modern Laws, would allow grocery stores containing at least 25,000 square feet, located in counties of 50,000 or more residents, and not located within 300 feet of an existing package store, to obtain multiple off-premises licenses for the purpose of selling un-refrigerated wine. Following the unsuccessful court challenge, grocery store wine supporters have announced plans to collect the signatures this fall but to delay the vote until November 2014.

Now for some good news. For the first time in three years, Oklahoma’s revenue collections were sufficient to avoid budget cuts for the ABLE

Commission. Still, standstill budgets rarely have a neutral impact. The costs of goods we purchase, along with rising health care and pension funding, continue to increase, so standstill budgets do not usually allow us to maintain current staffing levels. Our staffing level is now at a 28 year low, while active licenses issued by the ABLE Commission have grown to an all time high.

Doing more with less seems to be a trend. Government funding, at least for state government services, is not keeping pace with the demand or need. However, our workforce here at the ABLE Commission remains focused on the job at hand, wearing multiple hats and getting the work out.

Our leadership stems from our Board of seven Commissioners. Appointed by the Governor for five year terms, these volunteers provide oversight, guidance and direction, while receiving no salary. We say good-bye to one of those commissioners this month, Desmond Sides, appointed by Governor Keating in 1996, who leaves us after 16 years of faithful service to the citizens of Oklahoma and the Oklahoma ABLE Commission. Commissioner Sides has left his mark on the Commission with his deliberate and insightful approach. Commissioner Sides was always ready to listen to every side, which in our business was sometimes more than two. Nearly every decision we are asked to address could have an impact on manufacturers, wholesalers, retailers and public safety. With an understanding of our laws and a desire to reach an equitable solution, Commissioner Sides listened and ruled fairly for sixteen years. My personal perspective as an administrator and as a regulator, serving at the pleasure of the board, is that I have been blessed to serve a man with high ideals and character beyond reproach, who always had time to listen to my problems. Commissioner Sides will continue to practice law in Poteau, Oklahoma.

Happy trails my friend, until … well you know the rest.

Desmond Sides, Esq., CPA

ABLE Commissioner July 1996 – June 2012

P. S. Please forgive me, Desmond, this sounded way too much like you were being eulogized.

ABLE Website
For Immediate Release
August 10, 2012

The ABLE Commission received notice that certain 1.75 Liter bottles of 1800 Tequila have been voluntarily recalled by its manufacturer. In the State of Oklahoma, the product’s nonresident seller, Republic, is coordinating efforts to retrieve and issue credit to ABLE licensees for recalled bottles of the product in the state.

The ABLE Commission is requiring all ABLE licensees to immediately discontinue selling or serving any of the recalled products containing the affected lot codes, pursuant to its emergency powers set forth in Oklahoma Statutes. 37 O.S. §§514, 528(I).

Any mixed beverage licensee or package store licensee that locates the recalled product should contact your Class-A wholesaler or Republic at (405) 702-4500 immediately so that the recalled product can be picked up.

To view a list of affected lot codes, you may view the manufacturer’s website, www.1800tequila.com, call 866-795-8805, email info@1800tequila.com.

An excerpt from the manufacturer’s press release is set forth below:

"Agavera Camichines, S.A. de C.V. , the brand owner of 1800® Tequila, today announced a voluntary US nationwide recall of 1800® Tequila 1.75 Liter Silver, Reposado and Coconut packaging due to potential damage during transportation and handling in some cases to the glass stopper.

"Please be aware that 1800 Tequila in all other sizes (50 ml, 200ml, 375ml, 750 ml and 1 Liter) are not impacted. In addition, 1800 Tequila Anejo, Select Silver (100 Proof) and 1800 Ultimate Margarita products are not impacted.

"Although it is believed that the percentage of affected bottles is low, to protect the safety of consumers, the brand owner, Agavera Camichines, S.A. de C.V., has made the decision to voluntarily recall the 1800 Tequila 1.75 Liter packaging as a precautionary measure. There have been no reports of consumer injuries, but the presence of small particles of glass in the bottle could pose a health risk.”

Press Inquiries should be emailed directly to the manufacturer at Media.Inquiries@1800tequila.com or mmccrea@mmprpublicrelations.ca, or you may call 416-435-5019.

Oklahoma Update

Statewide Prohibition: The Early Years

John A. Maisch, General Counsel,
Oklahoma ABLE Commission

Over 27,000 gallons of beer poured into Oklahoma City sewers on November 17, 1907,when Oklahoma officially became a state. The night before, revelers crowded the streets to indulge in one more round before the lights were turned off on legal consumption in the city’s saloons.

State law enforcement officials quickly discovered what the federal law enforcement officials would similarly find out just a few years later: Prohibition did not stop consumption, it only changed the manner and mode in which alcohol was manufactured, distributed, and consumed.

Ironically, Prohibition drove consumers away from beer, the low alcohol content drink that had become so popular in the United States since German immigrants arrived in the country in the mid-1800’s, to the higher alcohol content contained in distilled spirits. After all, there were higher profit margins in distilled spirits, whether it was smuggled into the U.S. from overseas or distilled under cover of darkness in a still hidden deep in the woods.

Ultimately, neither federal nor state law enforcement efforts could outmatch the ingenuity or determination of the hundreds of bootleggers looking to satisfy the demand of thousands of Oklahoma residents who refused to stop consuming alcoholic beverages.

To make matters worse, the Oklahoma Constitution only prohibited alcoholic beverages from being manufactured within the state. Thanks to the Commerce Clause, and the federal government’s glaring reluctance to curtail the flow of alcoholic beverages into the state, federal tax stamps continued to be imported by Oklahoma residents well into the first decade after statehood.

Not until Congress addressed this federal loophole through the passage of the Webb-Kenyon Act were these interstate shipments into Oklahoma finally stopped. Passed by Congress over the veto of President William Howard Taft , the Webb-Kenyon Act made it unlawful for alcoholic beverage to be transported into dry states, if those alcoholic beverages were intended for consumption in that dry state. 27 U.S.C. §122. The U.S. Supreme Court upheld the constitutionality of the Web-Kenyon Act in Clark Distilling Company v. Western Maryland Railway Co., 242 U.S. 311 (1917).

OKLAHOMA UPDATE

OKLAHOMA CONSTITUTIONAL CONVENTION

John A. Maisch, General Counsel,
Oklahoma ABLE Commission

Oklahoma’s Constitutional Convention delegates were mostly farmers, but the two delegates who wielded the most influence over the issue of prohibition at the Convention were two attorneys, William “Alfalfa Bill” Murray and Charles Haskell. Convention President Murray presided over the gathering, while Majority Leader Haskell worked behind the scenes to secure majorities on most of the controversial issues facing the delegates, including the issue of prohibition. A teetotaler and self-trained attorney from Ohio, Haskell had settled in Muskogee, a small town located in Indian Territory, in 1901.He made quick friends with the prohibition organizations upon arriving in Guthrie. With the help of Murray, Haskell was successful in getting a statewide prohibition provision inserted onto the ballot.

Haskell’s efforts were nearly derailed by the Committee on Liquor Traffic. Handpicked by Haskell and the Anti-Saloon League, the 15-member Committee was appointed to study the issue of statewide prohibition and submit its recommendations to Convention delegates. Misjudging the political strength of anti-prohibition forces, the Committee on Liquor Traffic sought out a compromise with those who opposed prohibition. The compromise, which would have continued prohibition in those counties formerly located in Indian Territory while allowing liquor on a county-option basis in all other counties, was completely unacceptable to Haskell. The compromise submitted by the Committee on Liquor Traffic was rejected by Constitutional Convention delegates.

Soon to be elected the State of Oklahoma’s first Governor, Haskell would champion the statewide prohibition provision through the Constitutional Convention on March 15, 1907. A little more than six months later, on September 17, 1907, Oklahoma voters would overwhelmingly ratified the state’s first Constitution by a vote of 180,333 (71%) to 73,089 (29%). Statewide prohibition would not garner the same level of public approval. Fearing that its inclusion might risk defeat of both questions, the Convention delegates submitted constitution ratification and statewide prohibition as separate questions on the ballot. Prohibition supporters were justified in being concerned. The statewide prohibition provision was ratified by Oklahomans, but by a much narrower margin: 130,361 (54%) to 112,258 (46%). Oklahoma’s Constitution, including the statewide prohibition provision, became effective November 17, 1907.

OKLAHOMA UPDATE
OKLAHOMA CONSTITUTIONAL CONVENTION

John A. Maisch, General Counsel,
Oklahoma ABLE Commission

Over a century ago, leaders from both Oklahoma and Indian Territories converged on Guthrie on November 20, 1906, to consider constitutional provisions for the proposed state. Proponents and opponents of prohibition were not far behind.

With such different policies on the sale of alcoholic beverages, our state’s founders were forced to take position on the issue: How would the state’s new constitution address alcoholic beverage sales within its border.

By the late 1800’s early 1900’s national prohibition and anti-prohibition movements had already sprung up across most of the United States. These movements had various origins, but most had religious, ethnic, and economic overtones.

One of the prohibitionists’ primary concerns was tied houses, saloons that were either owned or funded by particular liquor and beer manufacturers. These saloons would be home to many nefarious activities, such as gambling and prostitution.

Supported by national malt beverage interests, the German American Association established a presence in Guthrie to counter the prohibition message espoused by the Anti-Saloon League and the Woman’s Christian Temperance Union.

Along with the local organizations such as the Citizens League and the Liquor Men’s Association, the German American Association argued that statewide prohibition would have an adverse impact on the proposed state’s economy.

The Oklahoma Constitutional Convention was composed of 112 delegates,58 from Oklahoma Territory, 58 from Indian Territory, and 2 from Osage Nation. Ninety-nine delegates (88%) were Democrats, 12 delegates (11%) were Republican, and the remaining delegate was an Independent.

Over the next four months, delegates addressed all of the most pressing issues that would confront a new state, but perhaps no single issue caused more consternation than prohibition.

ABLE Commission
Legislative Updates

APRIL 16, 2012

A. Keith Burt Oklahoma ABLE Commission

The Oklahoma Legislature convened February 6, 2012 and as usual legislation will be introduced or carried over from the first session at the 53rd Oklahoma Legislature that could affect the ABLE Commission.

Our agency deals with charitable gaming and prevention of youth access to tobacco legislation, but for this publication
I will only present the items affecting the alcoholic beverage industry.

We are currently monitoring the following Senate or House bills. Our staff researches and our General Counsel presents
updates of these bills in greater detail at our monthly Commission meeting. The Commission meets on the third Friday of each month at 10:00 a.m., at the Oklahoma City Office, 3812 N. Santa Fe, Suite 200.

House Bill 2477 by Representative Seneca Scott allows breweries to provide limited samples at the brewery (10 oz. total
serving a day).

House Bill 2867 by Representative Mike Shelton allows felons to obtain employee licenses after three years following
the completion of the sentence.

House Bill 2958 by Representative Mike Christian would require restaurants and bars to carry a minimum of $350,000
liability insurance.

House Bill 2930 by Representative Don Armes would allow persons under 21 to enter into a package store but not
approach the cashier (nor make a purchase)
.
Senate Bill 570 by Senator Rob Johnson would expand the scope of employee licenses to include wineries
.
Senate Bill 659 by Senator Clark Jolley would modify the definition of “Oklahoma Winemaker” and addresses festivals
and trade shows.

A closer look at these bills and other legislation that could affect the ABLE Commission is presented at our monthly
meetings in the legislative review portion that provides updates through the end of the Oklahoma Legislative session.

Commission Reaches Out to Applicants

Seeking Preliminary Confirmation of 300' Distance from Church or School

Applicants seeking a package store license or bar license are reminded that no package store or bar may be located within 300’ of a church or school. 37 O.S. §518.3. The distance is measured from the nearest perimeter wall of the proposed location to the nearest property line of the church or school.

Generally, the ABLE Commission will confirm the distance while performing its on-site inspection at the conclusion of the application process. Time permitting, an applicant may contact the ABLE Commission to request a preliminary measurement. However, if a question exists whether a proposed location falls within the 300’ proximity restriction, applicants are strongly encouraged to contact a licensed surveyor.

MARCH 13, 2012

For Immediate Website Release

ABLE Commission Addresses March Madness Contests

In 2004, the ABLE Commission addressed whether it was lawful to play Texas Hold 'Em in a mixed beverage establishment. The Commission’s position was that poker would be allowed only under the most limited of circumstances, specifically that there was no cost to participate and no prizes could be awarded. There has been no legislative action that would prompt us to revisit this position at this time.

Consequently, NCAA March Madness contests would also be prohibited in mixed beverage establishments if 1) patrons must pay to participate in the pool 2) for the chance to win cash, a gift certificate, food credit, or other valuable consideration. 21 O.S. §1051. It should be noted that, even if patrons are not required to pay to participate in the basketball pool, Oklahoma law prohibits mixed beverage establishments from giving away alcoholic beverages in connection with any contest, 37 O.S. §537(B)(4)(f).

The ABLE Commission emphasizes that Oklahoma’s gambling prohibitions are criminal statutes, not administrative statutes, created by the Oklahoma Legislature, not the ABLE Commission. As a general rule, these gambling prohibitions apply to all public places, not only mixed beverage establishments. Those citizens or mixed beverage establishments wishing to change Oklahoma’s gambling laws should contact their legislators.

Oklahoma law requires the ABLE Commission to enforce the laws of this state, particularly those involving alcoholic beverages. Nevertheless, locally elected, law enforcement offices are presumably in a better position, fiscally and logistically, to handle the investigation, property storage, and ultimate disposition of such violations. Therefore, unless there is an imminent threat to the public's safety or health, we believe it is more appropriate for local sheriff and/or police departments to assume the primary responsibility of enforcing such violations, rather the ABLE Commission, since the gambling statutes involve criminal statutes, not administrative statutes.

THE ABLE COMMISSION: A VOICE AT THE TABLE

A. KEITH BURT, DIRECTOR, OKLAHOMA ABLE COMMISSION

An article appeared in the February 2012 issue of “ADDICTION” entitled “Top Priorities for Alcohol Regulation in the United States: Protecting Public Health or the Alcohol Industry?” by Sarah M. Mart of Alcohol Justice.

“ADDICTION” publishes peer-reviewed research reports on alcohol, illicit drugs and tobacco behavioral addictions. ADDICTION has been published since 1884 by the Society for the Study of Addiction to Alcohol and other Drugs, a non-profit based in England that describes itself as a society that promotes professionals in the field of addictions to share their knowledge, skills and enhance the work of their members for the mutual benefit of all concerned with the study of addiction.

Ms. Mart’s article relates her experience at the National Conference of State Liquor Administrators (NCSLA) National Conference June 20-24, 2010, in New Orleans, Louisiana. Ms. Mart points out about 72% of the attendees are from the alcohol industry and that only 7 of the 21 states in attendance that sent a regulator sent more than one representative. She goes on to show 65% of the panelists were from the alcohol industry and that she was the sole public health advocate in attendance.

I remember the 2010 NCSLA National convention However, I remember not being there because of our latest budget crunch and conserving our resources by not going. When I related our financial situation to our seven Alcoholic Beverage Laws Enforcement (ABLE) Commissioners, each one understood

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in its administration of the Federal Alcohol Administrators Act; and to strive for harmony in the administration of the Alcoholic Beverage Control laws among the several states.

Ms. Mart points out that because of safety and health concerns our residents depend on effective alcoholic beverage control laws, and that NCSLA might want to include public health as one of its professional and organizational priorities. Guess what Sarah, I agree. As the newly elected Southern Regional Chairman of NCSLA and as a member of its board, I am proud to say the Oklahoma ABLE Commission will be hosting the North-South regional this fall in Oklahoma City. My General Counsel and I are in the process of putting together interesting and informative panelists for the conference. We want to include public safety and health advocacy groups on those panels. Although I agree with Ms. Mart’s position on bringing public safety and health advocacy groups to the proverbial table, to have a voice. Nevertheless, I do not agree with the approach, to not to be a part of NCSLA because there is not enough representation of those groups. Why not choose to participate and be that voice? I personally believe the industry is wise to address their concerns with regulators. In Oklahoma we have industry and health and mental health leaders that we are in contact with each other on an on-going basis. Because of the strong leadership in the Oklahoma Department of Mental Health and Substance Abuse agency, we have had joint projects that have addressed many public health issues.

I believe there are unintended consequences as a result of Ms. Mart’s article. I believe it casts the NCSLA in an unjust and unfavorable light. NCSLA’s President William Kelley of Massachusetts strongly defended the organization and I am in support of his response.

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and our only representative was a Commissioner that paid his own way. This Commissioner values the NCSLA and the information he receives from it. Keep in mind that Commissioners do not receive a salary for their participation on the Commission. This was not the case with Ms. Mart, whose trip was funded not by her organization “Alcohol Justice”, formerly the Marin Institute, and she did not pay her own way. Instead, the NCSLA paid for her to come in an effort to reach out to public health advocacy groups.

In addition to the number of industry members to regulators, Ms. Mart also points to, in my opinion, what was described as a bullying tactic by the industry to force the regulators to work with the industry to get to their support. Implications were perceived, if regulators did not follow their lead, consumers in the regulator's state could threaten their jobs. I do not feel threatened when working with the industry on their concerns.

Ms. Mart states in her article the purpose of NCSLA as found on its website NCSLA.org is as follows:

…to promote the enactment of the most effective and equitable types of state alcoholic beverage control laws; to devise and promote the use of methods, which provide the best enforcement of the particular alcoholic beverage control law in each state; to work for the adoption of uniform laws insofar as they may be practicable; to promote harmony with the federal government

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But, where are we now? If one of our goals is to bring 1) health and public safety into this triangle with 2) industry and 3) regulators, have we taken a step back? Are communications better or worse now?

I hope Ms. Mart will come to the regional in Oklahoma City. I would warmly and sincerely welcome her. I am not, however, in favor of paying for that trip from NCSLA funds. I would rather give funds to regulators whose budgets do not allow them to come.

These are solely my opinions, but I am ready to start a dialog that will improve relations that lead to happy, healthy, safe citizens in Oklahoma and all other states.

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The ABLE Commission: Saying Good-bye to 2011

A. Keith Burt, Director, Oklahoma ABLE Commission

In 2010, the ABLE Commission said good-bye to five longtime ABLE employees through retirement. Because of budget cuts, we were able to only refill two positions, but, thankfully, 2011 did not claim further ABLE retirees. 2012 will not be so kind, as we expect at least three more employees to retire.

In recent years our economy has presented challenges to both private and public companies and although uncertainties exist, I am encouraged as Oklahoma's economy continues to show signs of improvement. These signs give me hope that future retirements would be met with our ability to replace the retiring employees. It is difficult enough to lose all that institutional knowledge, compounded with the loss of manpower when critical positions are left unfilled, without your mission being compromised.

As 2011 drew to a close, the Oklahoma ABLE Commission had 41 full time focused employees. I have managers opening the mail and supervisors filling in at the front desk. We have most employees stepping up and wearing multiple hats.

When you have as few employees as we do, you tend to know everyone. You grow to care about other employee's and their families. I hope employees have satisfying work, do a good job and make it to their retirement goals, emotionally intact without bitterness, not beaten down by the job and in good health, able to enjoy the retirement they have earned

Two decades ago, we had twice as many employees, less work and it has been over five years and counting since state employees received their last pay raise.

The retirement wishes I have for myself and my colleagues just gets more complicated, yet they inspire me, with their dedication and faith.

We had many challenges in 2011, among them more budget cuts. Government consolidations continued and our agency was once again a target. We moved our offices at the end of September, and Oklahoma took a serious look at wine and strong beer in grocery stores.

As I say good-bye to 2011, I turn my attention to 2012 and what is in store for us this year. In a month the legislators will be back and I am hopeful when they convene some answers to our financial woes will occur. Collecting over five million dollars each year and receiving only a little over 3.1 million dollars, the ABLE Commission is a bargain, and if we were a for profit company, we would be in the black and paying dividends.

The ABLE Commission and its predecessor, the Alcohol Beverage Control Board (ABC), have been enforcing liquor laws and regulating the sale and distribution of alcoholic beverages since 1959. Alcohol is a unique product and serious consequences can occur if it were treated as pop. A New Year; same mission: Keep it safe.

Until this time next year, here's wishing you and yours a Happy New Year!

The ABLE Commission: Alcohol and Crime

Jim Hughes, Assistant Director, The Oklahoma ABLE Commission

Kids drinking beer and alcohol; what is the world coming to?

OK, I guess this is not a new problem. It has been a concern since I was a kid and my parents worried about me. It was a concern to me when my daughters were teenagers. What do we need to do and what can we do to address this problem before my grandchildren are teens?

We all know that if young people want to drink, they will find a way to obtain alcoholic beverages in some form. Recent surveys indicate that 65% of Oklahoma youth say getting alcoholic beverages or low-point beer is easy. Whether from a parent, family member, friend or retailer, adults are often the main source of alcohol for kids.

According to a 2001 study, underage drinking in that same year cost the citizens of Oklahoma $771 million. Included in the cost are medical care, loss of work, pain and suffering from problems due to use of alcoholic beverages. This same study showed that underage drinkers consumed 20% of all alcoholic beverages sold in Oklahoma, totaling $ 184 million in sales.

The Governor established a task force on the Prevention of Underage Drinking and requested a comprehensive plan to address the problem. The task force was comprised of community leaders state and local law enforcement, Department of Mental Health officials, legislators and educators. Most, if not all, are parents or grandparents.

The task force made its final recommendations in December 2006 with little or no publicity or fanfare. To date, even with the growing problem,there has been no effort to take advantage of the group's efforts. Will this study be bound and placed on the shelf like so many others and referenced only during the next study authorized to again examine the issue?

The task force made the following recommendations:

1. Create or designate a single agency to be responsible for coordinating underage drinking enforcement currently an individual receives a license from the state, the county and the municipality, which allows for the sale of alcoholic beverage and low-point beer.

The regulation and enforcement of state alcoholic beverage laws and low-point beer laws is parceled between local and state law enforcement agencies. There is clear authority over licensing but the enforcement of low-point beer law is an area that must be done by local authorities; while alcoholic beverage laws may and must be enforced by all law enforcement entities in the state.

Reporting underage sales or complaints of minors in possession of alcoholic beverages is not funneled to one responsible entity and is often lost in law enforcement’s list of priorities and limited resources.

2. Name the ABLE Commission as the agency authorized to enforce laws pertaining to low-point beer, as well as alcoholic beverages. The ABLE Commission has clear authority to license all establishments involved in the manufacture sale, delivery, mixing and serving of alcoholic beverages in the state of Oklahoma.

It has been the sole authority since 1959. It has established offices, policies and procedures in place that would easily assimilate the inclusion of low-point beer enforcement. Currently most on-premise licensees have an alcoholic beverage license. and a low-point beer license. ABLE agents during tobacco enforcement visit other low-point licensed locations. The Constitution and Attorney General opinions prevent low-point beer enforcement by the ABLE Commission.

4. Strengthen state laws pertaining to underage drinking. Youth Access to Alcoholic Beverages and social host laws are a great start, but perhaps attention should be placed on the individuals or locations that continue to furnish kids with alcohol.

5. Increase law enforcement funding and resources to allow for proper and consistent enforcement of underage drinking laws.

6. Increase the tax on alcoholic beverages and low-point beer.

7. Encourage funding and implementation of prevention approaches that are evidence based;Cops-in-shops, shoulder tap, green card are a few programs that have proved to be successful in minimizing sales to minors. All are time and manpower intensive which strain limited resources.

8. Require and provide licensee education, to include employee training. This has been found to be a valuable asset for the regulator and licensees. The training allows special emphasis to be given to problem areas such as underage sales.

9. Develop and implement a statewide media effort.This has proven its worth in slowing youth use of tobacco as demonstrated by Health Department involvement and statistical information.

10. Enhance opportunities for youth leadership efforts. Proven that most effective anti-sales programs concerning youth use of tobacco are originated with and put forward and supported by the youth themselves. Just as many kids are interested in minimizing alcohol use and abuse. Mental Health and Health Departments have a successful track record that is easily modified to target underage drinking. The recent social host laws and ordinances put into place by several communities are a great first step. But lets not stop there we can do so much more.

How great would it be that after a very short time, most Oklahomans were talking about the changes made across the state that have made a difference in our youth's access to alcohol. By increasing the penalties for providing alcohol to young people we could send a strong message that would make adults think twice before handing it to them. That is

was certainly not worth losing a job or the money spent on fines or living with the consequences of the actions of that underage person drinking.

Assigning responsibility of state law enforcement to a law enforcement agency and increasing those enforcement efforts would certainly seem the logical course of action by the state. The media effort, education of kids, parents, retailers and servers could be done with oversight from the Department of Mental Health, who currently coordinate the efforts to prevent youth access to tobacco.

Bottom line is that the cost of doing nothing is too high. We can certainly do better and this Task Force's recommendations make sense and should receive strong consideration from our state leaders. Oklahoma's youth are important to all of us. There is absolutely no reason Oklahoma can't be a leader in this effort.

The task force created a template for positive change in the way we address this problem, lets use it.

December 21, 2011

STRIKING A BALANCE

By A. Keith Burt, Director, Oklahoma ABLE Commission

Our work at the ABLE Commission often involves striking a balance. We never forget we are a law enforcement agency and ensuring compliance with the law is a great concern to us. The public safety issues we encounter, balanced with the economic concerns of our licensees and those of Oklahoma consumers, play a role in our administrative and enforcement efforts.

Recently, I was meeting on the Joint Legislative Task Force created by Senate Bill 658. This 21 member Task Force that I was a part of had a very diverse makeup. The Task Force consisted of health and public safety officials as well as alcoholic beverage industry representatives from the three tiers. Commerce, convenience and grocery stores were also represented. Lay citizens were appointed along with three Oklahoma State Senators and three Oklahoma State Representatives.

The Task Force’s purpose was to examine the feasibility of allowing high-point beer and wine to be sold in convenience and grocery stores. There were constitutional amendments to consider. Economic consequences to existing licensees that had been playing by a set of rules for more than fifty years with substantial personal investments were also to be considered. What about eventual costs to Oklahoma consumers? Would selection increase or decrease? The prices of not only wine and strong beer, but liquor as well are being examined.

Reports were given concerning impacts of economic relevance to the various groups. Health concerns and those impacts on Oklahomans were also discussed. My concerns of greater access by our youth were also discussed and I introduced reports from Washington State that showed compliance rates decreased when that state allowed wine sales in grocery stores. The exponential growth of licensees with increased hours of operation would certainly strain our existing manpower. I know that thirty-five other states allow the sale of wine in grocery stores and thirty-three of those allow convenience stores to sell wine. Because other states allow it does not mean it is right or wrong for Oklahomans. The Task Force was to disband no later than February 1, 2012 with a report to the Oklahoma Legislature. The ABLE Commission knows its role. We are law enforcers not law makers. Hopefully, the information provided will help those decision makers in the next Legislative session. At the end of our second meeting, a motion was made, and without any verbal dissent, it was voted that the Task Force would not meet again. With many factors to consider, the Legislature has its work cut out to determine a future course for Oklahomans on the issue of wine and strong beer sales in Oklahoma.

It is not always easy to strike a balance between public safety issues and allowing the freedom to pursue an economic endeavor involving intoxicating beverages. It is not soda pop that we regulate. As much as I hear from some of the public that the ABLE Commission is too restrictive and we need to be more progressive, not even a year ago headlines in a local newspaper read, “Agency Waters Down Penalties.” The ABLE Commission was being criticized for not revoking eight licenses for selling to a minor. We should have to defend our actions and we did. A $1,000 fine to a server’s first offense is not insignificant in my opinion. I have often stated that correcting behavior is our primary goal, not writing tickets.

We need to strike a balance. Some will always think there is too much enforcement; others wonder why we don’t throw the book at the violators. As the Director of the agency charged with enforcing the State liquor laws, I want to ensure that Oklahomans have the right to enjoy alcoholic beverages responsibly without harming themselves or others, while at the same time allowing a business friendly environment. It’s about “striking a balance”.

The ABLE Commission would like to make available to law enforcement officials the following list of 2M2L Training Dates and Locations:

As business owners look for ways to increase their visibility and bring more customers to their doors, I have seen an increase in mobile food vehicles. A recent mobile event, which organizers were calling H & 8th, named for its location at Hudson and 8th Avenue, included a taco and burrito truck, an ice cream van, a couple other food trucks, and an Ale dispenser. Local restaurants were busy, an art gallery had its doors open and two young men were singing and playing guitars. It sounds like fun to me, although I was not there that particular night. I have been thrilled to see Oklahoma City become a place thriving with entertainment and dining opportunities for our citizens and visitors. Then something went terribly wrong. The event was scheduled to kick off at 8 p.m., but less than an hour into the festivities the report that I received was that there were health code violations that caused some of the food vendors to shut down. The ABLE Commission’s participation included writing two tickets at one of the local restaurants unrelated to the event.

I read accounts of that evening and asked our Assistant Director to provide me with a review of our actions. Those attending the event were surely disappointed. I was disappointed that the event hit a snag and our citizens attending were now wondering just what happened. There were several accounts following and the coverage lasted more than a week. One report I read said we were “Sovietized Gestapo” and a bunch of Nazis. When you are trying to do a good job and your intent is to protect and serve the public, it is disappointing to read how someone has perceived your efforts and even though some cultural and historic references may have been mixed and matched, it is never fun to be compared to Hitler. Mayhem in midtown and swat raids were mentioned in some accounts of that evening. I do not believe any of our licensees think we are going to call ahead and warn you that we are coming. I plead guilty to having unannounced or surprise inspections; however, I do not want to put any honest, taxpaying licensee of ours out of business. The ABLE Commission did not shut down anything. The only time you see our agents at a taco truck would be to investigate a report they were selling whiskey from it or they were hungry. However, this story should not end there with “it’s not our fault.”

Citizens expect and deserve their government to be responsible to them, to serve and protect them. View what happened that night from someone looking to enjoy the evening at H & 8th. When I heard there were over 20 agents descending on the event, I wondered where they all came from. We only have 22 agents for the entire state. As it turns out, in addition to our three agents, one of which was in training, there was a presence from city and county health inspectors, fire and city enforcement officers. I could definitely see why someone would wonder why this much manpower was needed. I can only relate to you that we were checking on a caterer’s license, that was not even two days old and catering for the first time. I want to be responsible and sensitive to the needs of the business community. This responsiveness includes doing our best not to interrupt someone’s dinner when we make inspections. It has always been more important to me to correct behavior than write tickets. Our agents are entrusted with the awesome responsibility to carry firearms; they are police officers and sometimes their job is dangerous. I expect them to be sensitive to the economic investment our licensees have made. We know our actions can have consequences on businesses and we are always mindful of that.

As I close this story I have one more thing to report on the activities of that evening. It may affect only one person, but it is important to me. One of the tickets we wrote affected a hard working young man that had let his license expire. It was only two weeks overdue, but in addition to the administrative citation we wrote, there was a citation written from another jurisdictional authority. Confused about who wrote what and how to take care of this, I get a call regarding “the other ticket.” Respectful and courteous, I hear the confusion in his voice. It would be easy to feel like the government is ganging up on this guy with two tickets for basically the same offense. I personally believe an oversight is much different than willful neglect. I want to be fair and to help people who occasionally make a mistake. My General Counsel is reaching out to the other jurisdiction to apply reason and fairness in this situation, not just assess a penalty because we can.

It is 7:30 p.m. on a Friday night as I turn this article in. The organizers of H & 8th are trying again tonight. The event starts at 8 p.m. and since I missed lunch today, I’m pretty hungry. I think a taco sounds good. I’ll let you know how this one goes, or more likely, you’ll let me know.

The History of 3.2% Beer in Oklahoma

John A. Maisch, General Counsel

Oklahoma ABLE Commission

The Stock Market Crash of 1929 not only obliterated the life savings of millions of Americans and ushered in the Great Depression, it also set into motion the chain of events that would ultimately lead to the repeal of the Eighteenth Amendment.

Franklin Delano Roosevelt swept into the Oval Office in 1932 by a nation hungry for change. He promised a wide range of economic and social reforms, including the repeal of Prohibition. During campaign stops, he would refer to Prohibition as a “stupendous blunder.”[1]

President Roosevelt formally proposed a constitutional amendment that would repeal the Eighteenth Amendment shortly after taking office. No constitutional amendment had ever been repealed outright before this time. Roosevelt got his wish on February 20, 1933, when Congress passed the Twenty-First Amendment and sent it to the states for ratification.

While awaiting ratification, Roosevelt pushed forward with another campaign promise. He touted legislative reform that would redefine those malt beverages containing less than 3.2% alcohol by weight as non-intoxicating beverages, and therefore make the production, distribution, and sale of such beverages exempt from the Eighteenth Amendment.

The Cullen-Harrison Act was signed into law by President Roosevelt on March 23, 1933. Effective midnight, April 7, 1933, beer containing less than 3.2% alcohol by weight was no longer prohibited by the Eighteenth Amendment.

It was reported that 25,000 people gathered around the Anheuser Busch facility in St. Louis and 10,000 crowded around the Schlitz brewery in Milwaukee as midnight approached. Just past midnight, Anheuser Busch sent cases of the non-intoxicating beverage to both President Roosevelt and U.S. Senator Al Smith (N.Y.) on Clydesdale-driven wagons. [2]

Oklahoman voters would approve their own state referendum reclassifying 3.2% beer as non-intoxicating on July 11, 1933. The state question passed overwhelming by a vote of 224,598 to 129,582 on what was reported the hottest day (107˚) in 43 years.[3]

This article is an excerpt from a webcast presented by John Maisch on behalf of the Oklahoma Bar Association’s continuing legal education program on March 30, 2011. The webcast in its entirety is available through the OBA’s website at www.okbar.org or by calling (405) 416-7006. The OBA has approved the webcast for continuing education and charges $50.00 to view the 50-minute webcast.

The ABLE Commission has received inquiries from mixed beverage establishments and the media requesting feedback on a recent civil lawsuit filed in Canadian County by several Oklahoma citizens: Truel et. al v. Aguirre, District Court of Canadian County, Case No. CJ-2011-115. While we issue licenses to mixed beverage establishments, we do not oversee the assessment, collection or remittance of gross receipt taxes by these licensees.

The ABLE Commission is not a Plaintiff or a Defendant in this lawsuit. Consequently, we are not in a position to advise or respond to inquiries from licensees about the allegations contained in the lawsuit. Mixed beverage establishments may wish to consult with private legal counsel.

John A. Maisch, General Counsel

August 15, 2011

THE ABLE COMMISSION
INTRODUCES SEARCHABLE DATABASE FOR ALCOHOL AND TOBACCO COMPLAINTS

The Oklahoma ABLE Commission recently completed a two-year project that provides the public and law enforcement officials an online database to file and search alcohol and tobacco complaints. The database permits law enforcement officials the ability to enter alcohol and tobacco compliance checks that they have conducted in their own jurisdictions.

“This anonymous submission of alcohol and tobacco complaints allows the ABLE Commission to more efficiently assign the complaints for investigation,” stated Director Keith Burt. “Now the public has the capability to monitor some of the activities of the alcohol and tobacco retailers in their communities directly from our web site at www.able.ok.gov.”

This system, in addition with the collaborative efforts of law enforcement officials in Oklahoma and Tulsa counties, is an effort to reduce alcohol and tobacco sales to underage persons and alcohol sales to intoxicated persons. Thanks to a Justice Assistance Grant (JAG) awarded to Oklahoma Department of Mental Health and Substance Abuse Service (ODMHSAS) and administered through the Oklahoma District Attorneys Council, the ABLE Commission conducted more than 100 over-service checks in Oklahoma and Tulsa counties.

Assisted by Oklahoma’s 17 Area Prevention Resource Centers (APRC), ABLE instructed over 250 alcohol retailers in Responsible Beverage Service and Sales. This 4-hour course concentrated on recognizing valid identifications, early recognition of intoxicated persons and the refusal of service. Statistical data of written tests were scored and analyzed by the OU Health Science Center.

The 53rd Oklahoma Legislature has adjourned and as usual we encountered many challenges this past Session. State agencies struggling with declining resources were faced with another round of budget cuts. We are not alone, as large and small businesses throughout Oklahoma and the nation attempt to gain some momentum or simply try to survive.

The Legislature and Governor enacted legislation to streamline government services, including the consolidation of state agencies' information technology services. The ABLE Commission looks forward to contributing to these efforts as we move toward a more efficient state government, without reducing the level of service that licensees have come to expect from their state government.

Unfortunately, the ABLE Commission wasn't immune from the budget cuts that affected nearly every state agency. Legislative leaders and the Governor also struck a budget accord resulting in a 7% decrease ($236,000) in our agency's General Revenue Appropriations. 'This is an equivalent of four full time positions. While we are grateful that most of our funding was left intact, we are still fated with the fact that our agency's budget has been cut by over 20% since 2009.

While our budgets continually decrease, our responsibilities continue to increase. In addition to regulating alcoholic beverages, the ABLE Commission is charged with enforcing the Prevention of Youth Access to Tobacco Act and Oklahoma Charity Games Act. We feel privileged to have been entrusted with these additional responsibilities, but with every budget cut, we are reminded of the challenges of enforcing such diverse missions.

In light of these budget cuts, we are seeking alternate funding solutions as well as cost reductions, where feasible. In short, we remain focused on the task at hand, which is securing the public's safety while providing our licensees with the most prompt service that we can provide. We will continue to rely on your feedback as we continue to implement these changes. If you experience any decrease in service levels from our agency as a result of these budget cuts, we want to know as soon as possible, so that we can address the issue.

Finally, I wanted to take a moment to summarize a few other legislative bills involving alcoholic beverages that were passed by the Legislature and signed into law by the Governor this past session:

Senate Bill 658

Senate Bill 658 created a 2I-member task force to study whether the issue of wine and strong beer sales in grocery stores should be submitted to a vote of the people. The joint Legislative Task Force is composed of state senators, state representatives, citizens-at-large, and representatives from various industries. The Task Force is required to submit its report to the Legislature by February I, 2012.

House Bill 1211 amended Oklahoma's social host statutes to establish criminal penalties for those convicted of violating the state's social host laws. Effective November 1, 2011, first and second-time convictions that do not involve great bodily harm or death will be guilty of a misdemeanor. The legislation also affirmed municipalities' authority to enforce low-point beer ordinances, provided those ordinances are not more stringent than those set forth by state law.

The ABLE Commission does not make the laws, it simply enforces them. However, the ABLE Commission will continue to fulfill its obligations and articulate our public safety concerns as required by law. We appreciate the opportunity to share our concerns with elected officials, licensees, and members of the general public, and we are always available to hear your feedback on issues affecting the industry.

The Oklahoma ABLE Commission is pleased with the improvement of the state’s compliance rate of tobacco sales to its youth.

According to Jim Hughes, Assistant Director of the ABLE Commission, this year’s overall statewide compliance rate of 91.08% is up from last year’s 82.43%. The greatest area of improvement was seen in northeastern Oklahoma where, last year, nearly a quarter of convenience stores and grocery stores sold tobacco products to undercover youths. Today, less than 10% of that
area’s tobacco retailers sold to the youth.

The ABLE Commission conducted more than 2000 compliance checks throughout the state, thanks to a grant received from the Oklahoma Tobacco Settlement Endowment Trust (TSET). The grant is administered through the Oklahoma Department of Mental Health and Substance Abuse Service (ODMHSAS) which coordinates the state’s compliance check program. The ABLE Commission has been statutorily responsible for enforcing the “Oklahoma Prevention of Youth Access to Tobacco Act” since 1994 and has worked with ODMHSAS to perform tobacco compliance checks statewide.

Although we are pleased with the increase, we believe there are still far too many stores that will sell tobacco products to our youths,” stated Assistant Director Hughes. To further aid in its efforts to protect Oklahoma’s youths, the ABLE Commission announces the availability of an online query system. This system, made possible through a Justice Assistance Grant (JAG) administered by ODMHSAS, allows the public to search and submit complaints directly to the ABLE Commission. In addition, it offers law enforcement agencies the opportunity to record the compliance checks they have conducted within their jurisdictions. Access to this database is available through ABLE’s web site at www.able.ok.gov.

Hughes recognized TSET’s and ODMHSAS’s efforts to provide resources and coordination of services for increasing the number of compliance checks as important tools in the battle against youth tobacco use.

Every year brings new challenges, whether you are a state agency or a business owner. 2011 is no exception. The nation’s economic slump continues to impact everyone.

The ABLE Commission’s budget has been cut $548,000 in the past year. Keep in mind that our agency was operating at 2000 budget levels even before these most recent cuts took place. Despite these budget cuts, however, the ABLE Commission has continued to fulfill its responsibilities as a result of several factors.

First, we were able to secure several federal grants created to assist state agencies in performing responsible server training and tobacco compliance checks. These federal grants,while not permanent, have helped us avoid major reductions in employees or services.

Second, the Legislature approved an industry-supported cost-recovery surcharge. Since most ABLE license fees have not increased in over 25 years, this surcharge was necessary to assist us in covering the increasing costs of our most basic licensing and enforcement services. While the cost-recovery surcharge is considered modest by most standards, it has provided desperately needed assistance to our agency.

Third, we have pursued internal, cost-cutting measures,such as closing our Lawton field office and not refilling our Deputy Director or Chief Agent positions, in order to survive the budget cuts incurred by our agency. Like your business, our agency continues to do more with less. But it’s a constant challenge.

So while we look ahead to 2011, I wanted to take a moment to recognize five employees who retired from the agency this past year, especially Deputy Director Marta Patton. When a workforce loses the institutional knowledge of such a fine group, you are truly fortunate when those that depart took the time and effort to pass on their knowledge to benefit the agency.

Despite these budget cuts, the ABLE Commission has continued to focus on two primary mandates, public safety and an orderly marketplace.

PUBLIC & CONSUMER SAFETY
In northwest Oklahoma City, an Edmond tanning salon owner brought a 17-year-old to a popular restaurant for a few drinks. Instead of refusing service, the restaurant served the high school student a double-bourbon because, according to the bartender,the tanning salon owner was a good customer. The ABLE Commission imposed a 10-day license suspension on the restaurant.

In Bixby, a patron was served 11 beers and 4 tequila shots at a sports bar within a three-hour period. No effort was made by the bar or waitress to monitor the alcoholic beverages being consumed by the patron. Within five minutes after leaving the bar, that patron caused a four-vehicle accident. The ABLE Commission imposed a 10-day license suspension on the bar.

In south Oklahoma City, a gentlemen’s club refilled eight bottles of Crown Royal unbeknownst to the state, the manufacturer, or its customers. Lab results confirmed that a substance other than Crown Royal had been added to the bottles. The ABLE Commission fined the gentlemen’s club $20,000 for unlawfully refilling bottles.

The ABLE Commission placed a moratorium on Four Loko and all alcohol energy drinks after its Oklahoma broker voluntarily terminated its representation of the product. The 23.5 ounce product contained the alcohol-equivalent of six low-point beers and the caffeine-equivalent of two large Starbuck’s coffees. Two weeks later, the Food & Drug Administrative declared the alcohol energy drink to be an adulterated product.

ORDERLY MARKETPLACE:
The ABLE Commission forced an Oklahoma City package store owner to relinquish his hidden ownership in three additional package stores and two wholesale companies. In addition to over $200,000 of inventory being constructively seized, the wholesale licenses were surrendered or revoked, one package store license was revoked, and the remaining three package stores are prohibited from sharing common ownership, names, or logos.

IN CONCLUSION
The sluggish economy has hurt all Americans, and although resilient,Oklahoma businesses and state government have suffered as well. Like your business, the ABLE Commission has tightened its fiscal belt, leaving vacancies unfilled and continuing to look for ways to be more effective with fewer resources. It’s a challenge that we all face together as we enter 2011.

A.Keith Burt, Director
Oklahoma ABLE Commission

From The Director’s Desk

2010 saw the retirement of 5 long time ABLE Commission employees.

Tim Wilson December 1, 1979 to January 1, 2010Roger Jennings August 8, 1985 to February 1, 2010
Kevin Sharp November 4, 1996 to August 1, 2010
Marta Patton July 23, 1974 to August 1, 2010
Stan Dowling September 22, 1986 to October 1, 2010

I recently visited with Tim and he was planning a trip to Thailand to do some scuba diving.

Roger Jennings stayed retired four whole days before taking a position with the Chickasaw Nation in the office of the Gaming Commissioner.

I saw Kevin Sharp around Christmas time in McAlester at the McAlester Office Christmas party. He looked great and said he still enjoyed fishing and hunting and was getting to do a lot more of each in his retirement.

Marta is getting to garden a lot more than she used to and we try very hard not to call her every time we have a question and we know she knows the answer. It reminds me of when Charlie Weaver retired in 1996 after 37 years with the ABC Board/ABLE Commission. Marta would remind me, Charlie’s put in his time, let him retire in peace. Well Marta, we are trying to let you retire in peace, but you were the closest thing we had to an encyclopedia on liquor laws since Charlie Weaver’s retirement.

Stan Dowling, in addition to having a career with the ABLE Commission, also served our country in the Naval Reserve.

To all the ABLE Commission employees we lost through retirement in 2010, I wish you a Happy New Year and a long and enjoyable retirement. Thanks for all your contributions to the agency and the citizens of Oklahoma.

For Immediate Release – November 17, 2010

This afternoon, the United States Food and Drug Administration (FDA) issued warning letters to four manufacturers of alcohol energy drinks, notifying the manufacturers that their products were not deemed generally recognized as safe by the federal agency.

The four companies named by the FDA include Charge Beverages Corporation, New Century Brewing Company, Phusion Projects, and United Brands Company. Only one manufacturer, Phusion Projects, is registered to sell its alcohol energy drink, Four Loko, in the State of Oklahoma.

The FDA’s warning letter stated that specific alcohol energy drinks manufactured by these four companies were considered adulterated products under the Federal Food, Drug, and Cosmetic Act, and gave these manufacturers fifteen (15) days to specify what steps each manufacturer were taking to correct the violations.

The FDA’s press release can be accessed at: http://www.fda.gov/Food/FoodIngredientsPackaging/ucm190366.htm

On November 3, 2010, the Oklahoma ABLE Commission placed a moratorium on the approval of alcohol energy drinks, including Four Loko, until a local scientific panel could be assembled to review the products’ safety.

At that time, the ABLE Commission specifically stated that the temporary moratorium would not affect licensed wholesalers' or retailers' ability to sell Four Loko currently in the state. The moratorium would only restrict the ability of Phusion Projects, Four Loko’s manufacturer, to bring its alcohol energy drinks into Oklahoma after December 3, 2010.

The ABLE Commission is in the process of deciding what additional action, if any, may need to be taken by the state agency in light of the FDA's announcement today.

While the state agency does not foresee taking any immediate action to require wholesalers or retailers to remove Four Loko from their shelves, the ABLE Commission encourages all consumers and ABLE licensees to review and carefully consider the warnings published by the FDA this afternoon.

The Oklahoma ABLE Commission was notified on November 2, 2010, that Four Loko would no longer be represented in the State of Oklahoma effective December 3, 2010. As such, Four Loko’s manufacturer, Phusion Projects, was notified that it would no longer be permitted to deliver shipments of Four Loko into Oklahoma for resale after that date.

In light of the growing scientific evidence against alcohol energy drinks, and the October 8th incident involving Four Loko in Roslyn, Washington, the ABLE Commission has decided to empanel a group of scientific experts to study the threats posed by pre-mixed, alcohol energy drinks combining ingredients such as caffeine, guarana, and taurine. The panel will present its findings and recommendations to the ABLE Commission at a date to be determined. While the ABLE Commission awaits the findings and recommendations of this panel, a moratorium has been placed on the approval of any pre-mixed, alcohol energy drinks that combine ingredients such as caffeine, guarana, and taurine, pending a determination as to the safety of these products.

This moratorium does not affect Four Loko products already in the state or lawfully delivered to wholesalers prior to December 3rd. After December 3rd, wholesalers will only be allowed to sell Four Loko to package store and mixed beverage licensees until their inventories are depleted. Similarly, package store and mixed beverage licensees may purchase Four Loko from wholesalers, and sell Four Loko to the public, until their inventories are depleted.

The ABLE Commission would like to express its appreciation to all licensees for their cooperation in this matter. All questions pertaining to the ABLE Commission’s moratorium should be emailed to John A. Maisch, General Counsel, at: jmaisch@able.ok.gov.

From The Director’s Desk

The liquor industry has lost an icon here in Oklahoma, Hannibal “Pancho” Shadid, owner of Pancho’s Liquor Town, passed away October 15, 2010. In 1959, Pancho opened one of the first retail liquor stores in Oklahoma as Oklahomans repealed prohibition. On numerous occasions he told me he would never retire, true to his word, he never did. Pancho came in regularly to keep an eye on the business he founded and with the loving support of his family turned it into the successful enterprise it is today.

I will remember many things about Pancho, among them his love for his family, also being an animal lover myself, I always appreciated Pancho’s feelings about pets and their treatment. I did not think I could find someone who liked dogs as much as I do. I was wrong. He was a savvy competitor, but he was also kind and generous. I first met Pancho at an ABC Board meeting, where he had brought his well behaved favorite Chihuahua Pepe´. After the board meeting as he was shaking hands and being introduced, I heard him say “who’s the new guy” to which my boss said “just some accountant from licensing”. “Does he have a name” Pancho said. “Yeah, Keith, Keith Burt” replied my boss. Pancho strides over, shakes my hand for the first in what would become hundreds of handshakes and tells me it sounds like I know what I’m talking about during a budget presentation. A compliment, a handshake and an invitation to his store for coffee and conversation the next time I was in the neighborhood.

In our many encounters over the years, he always greeted me with a warm smile and firm handshake, even near the end, that never changed. We talked of the industry, of course, but he always took time to ask how my family and I were doing.

In over 30 years, Pancho never treated me any differently than when he first met me. That is not to say he did not respect the office of the Director, he did, but he saw people as people, not just a number or an office. Early on, out of respect, I tried to call him Mr. Shadid. I was told I wasn’t talking to his father, “I’m Pancho, just plain Pancho”.

Pancho, yes. Plain, never.

Gone, sadly yes. Forgotten, NEVER.

My heartfelt condolences to the Shadid family.

Just plain “Keith”

MISSION: Enjoy Oklahoma Safely!

From The Director’s Desk
By A. Keith Burt, Director
Oklahoma ABLE Commission

A Hospitable Mission
Occasionally people get the wrong impression of our mission here at the Alcoholic Beverage Laws Enforcement (ABLE) Commission. Many believe we are here to put a cork in their attempts to have fun. Our mission states we enforce and administer the Oklahoma Alcoholic Beverage Control Act, Oklahoma Charity Games Act, and Prevention of Youth Access to Tobacco Act. Our desire is to help regulate an orderly market place and ensure a fair competitive situation for all. We would like nothing better than for all Oklahomans and our guests to enjoy Oklahoma’s hospitality.

A Broad Focus
In 1959 when the Oklahoma Alcohol Beverage Control Board was created we had only one focus and that was alcohol regulation. Through the years Oklahoma’s Constitution was amended by a vote of the people in 1984, and liquor-by-the-drink on a county option was approved and the size of our agency more than doubled and received a name change to the current day ABLE Commission. From the mid eighties with almost 80 employees, through the 90’s, which saw the Legislature add Charity Games enforcement and Prevention of Youth Access to Tobacco, to the present day, which finds us with all the three missions and only 41 full time employees to get the job done, the job remains a challenge.

An Increasingly Challenging Environment
Today’s world is undoubtedly more complex than in 1959 when our agency was born (no Internet sales to be concerned with then). Yet what we want for citizens remains almost identical. There is still the consistent desire to protect Oklahomans from harm, while allowing the freedom to enjoy the hospitality the Midwest is known for.

We are privileged to work with responsible representatives of the liquor industry. People in this industry know their product is unique and that selling this product bears a responsibility unlike most others. Regulation is required or consequences will be had. Just look at the published works, “The Dangers of Alcohol Deregulation: The United Kingdom Experience”. This is surely an eye opener for those who want to sell alcohol as if it were soda pop.

There is not enough time to delve into all the subjects as each have enough weight to merit their own article, such as the defending of the three tier system and the implications of vertical integration on that system. We deal with subjects such as direct shipping, the Costco case, Granholm, second generation Granholm, and a piece of legislation called the Comphrehensive Alcohol RegulatoryEffectiveness Act (CARE).

We deal with complex issues that invade simple supply and demand curves and interject public safety concerns that can and often do impact profit margins. People in our industry are just as concerned with their bottom line as any other walk of life. However, they realize that over indulgence can have deadly consequences. For the most part we deal with responsible retailers, restaurateurs and club owners. These people know we are out there checking their operations and most welcome it. They run clean operations and expect our help in maintaining an orderly safe market place. Do we write tickets? Do we revoke licenses? Do we make arrests? The answer is yes, yes, and yes. This, however, is not our goal - correcting behavior is. Many times a penalty will involve something other than a monetary or fiscal sanction such as greater security or perimeter control.

Increasing unit sales is generally a profit generator. However a cheaper more accessible product is not always the answer. If you have ever had the chance to catch Pam Erikson’s presentation on the “The High Price of Cheap Alcohol”, you will be thoroughly enlightened. There are many examples of balancing profits with public safety. We try to be the guys who keep a mindful eye out.